Assistant U.S. Attorney Angela George today faced significant questions about the federal prosecution of 13 people who protested at the White House in 2010 in opposition to "Don't Ask, Don't Tell." The protesters -- who sought more action from President Obama to end the ban on gay, lesbian and bisexual service -- had been charged by the U.S. Attorney's Office with a federal regulation prohibiting "interfering with agency functions," specifically violating a lawful order of the National Park Service.
After two different hearing times today in the E. Barrett Prettyman Federal Courthouse in the District, the possibility of any trial on the charges was put off until September.
U.S. Magistrate Judge John M. Facciola, a former assistant district attorney in Manhattan who was appointed to the bench by President Clinton in 1997, raised concerns about the charges in court this morning, asking the attorneys -- Assistant U.S. Attorney Angela George, the prosecutor, and defense attorneys Mark Goldstone and Ann Wilcox -- to confer about whether the rarely invoked charges needed to be pursued.
Of the judge's morning statement, which invoked civil rights-era prosecutions of protesters in questioning the charges brought against former Lt. Dan Choi and 12 others, Goldstone said, "The judge was telegraphing very clearly that he sees the case similiar to how we see this case: as a civil rights exercise, as a First Amendment exercise, as people who non-violently expressed their opposition to a policy which has now been repealed. So, what's the harm to the government if the case is dismissed, or if the case is handled in such a way that it doesn't result in a criminal conviction?"
Explaining the ways of doing that to Metro Weekly after the hearing, Goldstone said, "Lots of times demonstrators enter pleas of 'post and forfeit,' which is not a criminal conviction even though the charge itself might have been a crime." He also noted that there is the possibility of "deferred sentencing, in which case, if they are good, the charge will be dismissed."
After the judge brought the attorneys and defendants back to court a little before 3:30 this afternoon, George told Facciola that, after quick consultation with colleagues and her superiors, the "government is not prepared to accept or reject the court's" recommendation to find a way to avoid the trial on the federal regulation violation charge.
Of possible hearing dates when the judge would be out of the country, Facciola told the attorneys, "You better get a date for me because I'm going to keep this case."
After Goldstone presented possibilities for avoiding a conviction, the judge told the prosecutor, "I would urge you to give these proposals serious consideration."
The parties agreed to hold a status conference with the court and the attorneys at 10 a.m. May 17 to discuss those proposals. A date of Sept. 19 was set for the defendants to enter a plea or begin trial.
Because the 13 had not been processed in the federal system because their initial arrests were handled by local authorities, the 12 defendants in attendance -- Choi; Petty Officer Autumn Sandeen (Ret.); Cpl. Evelyn Thomas; Cadet Mara Boyd; Robin McGehee, co-founder and director of Get Equal; Dan Fotou, eastern regional field director for Get Equal; former U.S. Army Staff Sergeant Miriam Ben-Shalom; former U.S. Marine Corps Sergeant Justin Elzie; U.S. Army veteran Rob Smith; Father Geoff Farrow; Scott Wooledge; and Michael Bedwell -- were processed by the U.S. Marshals Office following the hearing.
The final defendant, former U.S. Army Arabic Linguist Ian Finkenbinder, was not present at today's hearing.
Goldstone, after the hearing, explained how he saw what was happening, telling Metro Weekly, "We're trying to figure out an acceptable resolution to the case that will satisfy our clients, who do not want a conviction for locking themselves up to the White House fence. That would be a successful resolution."
Of the prosecution's action to charge under the federal regulation, Wilcox told reporters, "We think it's pretty clear that they're just kind of digging in their heels, and they just don't want to allow people to get a break on this particular go-round -- on this conviction."